LAST UPDATE | 12 May 2022

FORMER MASTER OF the National Maternity Hospital (NMH) Dr Peter Boylan told TDs and Senators today that the term “clinically appropriate” as part of the framework for the new NMH “is a major red flag”. 

Boylan made the comments at the Oireachtas Health Committee, which is also set to hear from the current master of the NMH Shane Higgins who is in favour of the plans for the new hospital. 

Boylan has been a long-standing opponent of the proposed ownership and governance structure for the hospital’s move from Holles Street to the Elm Park location in Dublin. 

The new NMH is to be co-located alongside St. Vincent’s Hospital but the previous ownership of the site by the Religious Sisters of Charity has led to concerns from Boylan and others about the influence of Catholic ethos. 

Earlier this month, St Vincent’s Healthcare Group (SVHG) completed the legal transfer of the Sisters of Charity’s shareholding in the group to the new charitable company, St Vincent’s Holdings CLG.

Cabinet was due to sign off on plans for the hospital last week but this was paused for two weeks to allow for debate and possible changes to the framework of the hospital. 

The ownership structure remains a concern for opponents but the question of “clinically appropriate” contained in the hospital’s legal framework has also been raised repeatedly.  

In his remarks to the Oireachtas Health Committee today, Boylan outlined why he has concerns over that wording.  

“The phrase ‘clinically appropriate’ is a major red flag. Providing healthcare on the basis of this test removes autonomy from women and gives the sole decision-making capacity to doctors,” Boylan said.

“These words qualify access to services and enshrine justification for refusing legally permissible treatments.”

By way of example, Boylan referenced the Miss P case from 2014 where the life support of a clinically dead pregnant woman had been continued due to legal concerns. 

“The doctors interpreted that it was clinically inappropriate to turn off, to allow her effectively to complete her death because she happened to be pregnant,” he said. 

In his address, Boylan referenced comments made by current NMH clinicians that terminations are already carried out in St Vincent’s Hospital, something which demonstrates a freedom from Catholic influence. 

Boylan argues that it is important to clarify whether these terminations have taken place under the 2018 legislation or under previous legislation governing terminations when a patient’s life was at risk.

The Sisters of Charity had sought approval from the Vatican in order to relinquish their interest in the land and Boylan said during today’s meeting that correspondence between the religious order and the Vatican on this matter should be published. 

“There’s a lot of documentation that we haven’t seen and what I would like to do, I would like to see is documentary evidence to back up statements that were made,” Boylan told the committee. 

And in particular the State and the public and the women of Ireland need to see what I term the Vatican Papers. Otherwise, we cannot trust what has been said and what has been done.

Boylan argued that the proposed land ownership structure, whereby the State is to lease the land for 299 years, was problematic and that this could be ended “at the stroke of a pen” if SVHG were to either transfer it to the State or place it for sale. 

Minister for Health Stephen Donnelly has said repeatedly that SVHG is not willing to do this and Fine Gael Senator Martin Conway put it to Boyland that his suggestion was not an option. 

Boylan said that the State should continue to “push” for it, adding:

We are a Republic who are about 100 years old. I think it’s time that we stood up for ourselves as a people, face down the church and said we need that land.

The current Master of the National Maternity Hospital Shane Higgins is expected to challenge Boylan’s views before when he appears before the committee. 

“It has been difficult to hear claims both in the media and in this room that my fervent support for the proposed move to Elm Park is some kind of surrender to the Church,” Higgins is expected to say.

“Legitimate concerns are welcome and deserve every consideration, but we must also deal in facts, and I am alarmed by the combination of emotive misinformation and misunderstanding that prevails. 

“Just because the contracts underpinning the new hospital appear complex does not indicate the church stealing influence over women’s reproductive choices through clever contractual stealth.”

Higgins is also expected to outline that the discussion around the phrase “clinically appropriate” has led to a “misplaced fear” that it will allow the Vatican to stop certain procedures.

He will say that this needs to be challenged.

“This wording serves as future-proofing, to ensure that the new maternity hospital cannot be converted into any other type of hospital in the future.

“It guarantees that the new NMH will remain, throughout its lifespan, as a maternity, gynaecology and neonatal hospital, and in this way, this significant investment into world-class maternity care in Ireland is protected,” Higgins is expected to say.

Health Minister Stephen Donnelly appeared before the Health Committee yesterday alongside other representatives who are in favour of the NMH move to Elm Park.  

Another former master of the NMH, Dr Rhona Mahony, is also in favour of the plans and she appeared before the committee yesterday. 

Donnelly faced questions about the controversy in the Dáil today, with Social Democrats co-leader Róisín Shortall TD asking why, among “pages and pages” of legal documents, there is not a definition of “clinically appropriate”. 

She described this as “particularly baffling” and said a definition would remove some of the confusion around it.  

In response, Donnelly said the phrase is “a normal phrase used all the time” among doctors and he compared it to the use of phrases such as “obstetrics or gynaecology”.  

Shortall rejected that comparison and said it was “open to ambiguity”. 

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In response to questions from Sinn Féin’s David Cullinane TD, Donnelly said he would provide a “letter of comfort” in which his interpretation of the phrase would be outlined. 

This, he said, would have a degree of legal authority. 

“The advice I’ve had previously is Oireachtas debate does have some legal standing,” Donnelly said. 

During today’s committee hearing, Shortall asked solicitor Simon McGarr whether the minister’s promise to provide a definition of ‘clinically appropriate’ would be helpful. 

McGarr said that one issue is that one party’s understanding of the intention of a phrase may not be the same as another party to an agreement.

McGarr raised concerns about the retention of the phrase, saying that it leads to ambiguity which may be helpful “in the political world” but not in law. 

McGarr said that ambiguous terms can lead to “unexpected, unwanted and sometimes even perverse interpretations”. 

“An area where there is an undefined term that is going to be discovered later what it means is an area where we can anticipate problems into the future between the parties,” he said. 

McGarr said that based on the minister’s own comments the phrase was inserted at the request of the HSE and that it should therefore be “in the gift” of the State to remove it.

“Surely the correct response would be to simply remove the controversial clause, which has not got the need for it as other definitions do,” he said.  

Solicitor Simon McGarr

During yesterday’s committee, Donnelly had left the door open to changes to the proposals before the matter returns to Cabinet next week. 

In response to Cullinane today, Donnelly said that he “won’t rule anything out” but that any alterations to the proposals wouldn’t be “major changes”.

Yesterday, the Oireachtas Health Committee wrote to Donnelly asking that there be a delay in next week’s planned Cabinet decision on the hospital move.  

Speaking in the Dáil today however, Tánaiste Leo Varadkar said: “I expect there will be a government decision on the matter next Tuesday, but we will see how things develop between now and then.”